LOTHIAN AMUSEMENTS LTD AGAINST THE KILN'S DEVELOPMENT LTD [2019] ScotCS CSOH_51 (02 July 2019)

LOTHIAN AMUSEMENTS LTD AGAINST THE KILN'S DEVELOPMENT LTD [2019] ScotCS CSOH_51 (02 July 2019)

The pursuer's averments that the subjects were burdened by servitudes preventing vacant possession are relevant and suitable for inquiry; the defenders' submissions regarding allocation of spaces lack sufficient averment and clarity to be a relevant defence at this stage.

Citation
[2019] ScotCS CSOH_51
Parties
Pursuer: Lothian Amusements Limited; First Defender: The Kiln’s Development Limited; Second Defender: Daniel Martin Teague
Jurisdiction
Scotland
Judgment Date
02 July 2019
Procedural Posture
Commercial Action / Debate on Relevancy of Pleadings
Outcome
No final disposal; case put out by order for further procedure.
Legal Topics
Servitudes, Vacant Possession, Real Burdens, Missives of Sale, Deed of Conditions
Property Law Contract Law Servitudes Vacant Possession Real Burdens Missives of Sale Deed of Conditions

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Parties

Lothian Amusements Limited

Pursuer

The Kiln’s Development Limited

First Defender

Daniel Martin Teague

Second Defender

Procedural Posture

Commercial Action / Debate on Relevancy of Pleadings

Legal Issues

  1. 1 Whether the first defender was in material breach of missives by failing to deliver vacant possession and grant servitude rights as required.
  2. 2 Whether the servitudes created by the Deed of Conditions burdened the subjects such that vacant possession could not be given.
  3. 3 Whether the first defender or PHG could grant servitude rights over common property after disposition to apartment owners.

Ratio Decidendi

The pursuer's averments that the subjects were burdened by servitudes preventing vacant possession are relevant and suitable for inquiry; the defenders' submissions regarding allocation of spaces lack sufficient averment and clarity to be a relevant defence at this stage.

Court Disposition

No final disposal; case put out by order for further procedure.

Orders

  • Case to be put out by order to determine appropriate interlocutor, expenses, and further procedure.